Penn-Dixie Cement Corp.

PENN-DIXIE CEMENT CORPORATION 251 propriate for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act: All production and maintenance employees employed at the Employer's Santa Ana Street and Center Street plants in Anaheim, California , including leadmen,4 employees of the buf- fing and polishing , automatic buffing, plating , and burnishing departments , shipping , receiving , and warehouse employees employed at 709 Center Street , Anaheim, California , who are classified as material handlers , parts crib attendants, in- dividual truckdrivers , truckdrivers , leadman storekeeper, storekeeper , shipping clerk , and shipping clerk leadman, but excluding cafeteria employees , watchmen , guards, professional employees , office clerical employees , and supervisors as de- fined in the Act. [The Board dismissed the petition in Case No. 21 -RC-3225.1 [Test of Direction of Election omitted from publication.] 4The parties stipulated that leadmen are not supervisors within the meaning of the Act PENN -DIXIE CEMENT CORPORATION and UNITED CEMENT, LIME AND GYPSUM WORKERS INTERNATIONAL UNION, AFL, Petitioner . Case No. 4-RC-2005. December 1, 1953 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles Sand- berg, hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act. On May 2, 1953 , the Employer and Local No. 4 (a local of the Petitioner herein ) executed a contract for the period from May 1, 1953 , to April 1 , 1954, covering the production and maintenance employees but specifically excluding the labora- tory employees,plant clerical employees, and storeroom em- ployees. The Petitioner in this proceeding seeks to represent 'Because the record and the Employer 's brief fully present the positions of the parties on the issues involved herein, the motion of the Employer for oral argument is hereby denied. 107 NLRB No 74. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees excluded from that contract . The Employer con- tends that the contract of May 2, 1953 , constitutes in effect an agreement not to represent the excluded employees, binding not only on Local No. 4 which executed the contract but also on the Petitioner (its International ). We find no merit in this contention . There is nothing in the agreement of May 2, 1953, that may be interpreted as constituting a waiver by Local No. 4 of any right to represent the employees involved herein. 2 Under the circumstances , as Local No . 4 was not prevented from seeking to represent these employees , it is equally clear that the Petitioner was not incapacitated from doing so.s 4. The appropriate unit: The Petitioner is seeking to represent at the Employer's plants 4, 5 , and 6, located in Northampton County, Pennsyl- vania, a unit consisting of all laboratory employees , all plant clerical employees , and all storeroom employees . Alterna- tively, it would represent the laboratory employees in one unit, and the plant clerical and storeroom employees in another. The Technical Unit The parties are in substantial agreement as to the compo- sition of the technical group, except that the Employer would exclude, and the Petitioner include, the laboratory employees employed at the central laboratory at plant 6 .4 The record shows that the central laboratory services the 3 other labora- tories , and does additional research and testing when neces- sary. There is interchange of employees between the central laboratory and the other 3 laboratories , and the employees have the same conditions of employment . Accordingly, we shall include the employees at the central laboratory in the technical unit. The Employer contends that the laboratory employees are professional employees, and on that basis objects to their in- clusion in the same unit with the plant clerical employees. In the view we take of this proceeding , however , it is unnecessary for us to determine whether or not the laboratory employees meet the strict requirements of the definition of professional employees contained in Section 2 (12) of the Act. It is evident from the type of work performed by the laboratory employees, and the position they occupy in the Employer ' s plants, that 2 Western Gear Works, 98 NLRB 80 3 We reject also the Employer 's contention that the Petitioner is not qualified to act as reps esentative of these employees under its constitution and bylaws. The Board has re- peatedly held that the willingness of a Petitioner to represent the employees involved is controlling under the Act, and not the eligibility of employees to membership Northern Redwood Lumber Company, 88 NLRB 272. 4 The Petitioner would also include the assistant chemists at plants 5 and 6 Although upon occasion they substitute for the chief chemists during their absences , the record shows neither the frequency nor the duration of such absences . We shall, therefore, permit the assistant chemists to vote in the election subject to challenge. PENN-DIXIE CEMENT CORPORATION 253 their work is of a technical nature, and that they are at least technical employees, whose status for the purposes of collec- tive bargaining may be determined on those grounds alone.5 It is the policy of the Board, where objection is made to the inclusion of technical employees in a single combined unit with clerical employees, to establish separate units.' Accor- dingly, as the Employer makes such objection here, and as the laboratory employees are the only technical employees in the plant, we shall direct separate elections among the techni- cal employees and clerical employees, respectively. The Plant Clerical Unit The parties at the hearing stipulated as to the composition of the plant clerical unit, which includes at plants 4 and 6, the stores ledger bookkeepers, the 2 shipping clerks, the 2 time- keepers, and the 2 clerks. The Petitioner would include, and the Employer exclude, in the plant clerical unit the 2 store- room employees at plants 4 and 6. The record shows that the storeroom employees work in the storeroom and are engaged in the storage of incoming supplies, the issuance of mill sup- plies, and the taking of periodical physical inventories of sup- plies. They have the same supervision and employment bene- fits as other plant clerical employees. Accordingly, we shall include the two storeroom employees in the plant clerical unit: The Board has held that plant clerical employees, such as those involved here, may be appropriately included in the pro- duction and maintenance unit. As the record in this case does not indicate any conflict of interests or disagreement between the Petitioner (the International) and its Local (the current bargaining representative of the production and maintenance employees), and as our administrative experience has shown that under such circumstances it is the Local, and not the International, that in actuality bargains for the plant clerical employees, we shall grant the plant clerical employees an opportunity to express their desire as to whether or not they should be added to the existing production and maintenance unit represented by the Local.8 Accordingly, on the basis of all of the foregoing and the en- tire record, we shall direct separate elections in the follow- ing unit and voting group: (a) All laboratory employees employed at plants 4, 5, and 6, including the assistant chemists at plants 5 and 6, and the em- ployees at the central laboratory at plant 6, but excluding all other employees, guards, and supervisors as defined in the Act. 5 American Smelting and Refining Company, 80 NLRB 68. 6Ibid. 79ee Chicago Railway Equipment Company, 85 NLRB 586; Southern Paperboard Corpora- tion, 84 NLRB 822, 825 BMergenthaler Linotype Company, 89 NLRB 686; Truscon Steel Company, 95 NLRB 1005. 337593 0 - 55 - 18 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) All plant clerical employees employed at plants 4 and 6, including the two storeroom employees at plants 4 and 6, but excluding all other employees , guards, and supervisors as de- fined in the Act. If the employees in voting group ( b), above, vote for Local 4, United Cement , Lime and Gypsum Workers -InternationalUnion, AFL, they will be taken to have indicated their desire to be included in the production and maintenance unit currently rep- resented by Local 4 of the Petitioner , and it may bargain for such employees as part of the production and maintenance unit. [Text of Direction of Elections9 omitted from publication.] Member Murdock, dissenting in part: I cannot concur in the disposition made by the majority de- cision with regard to the plant clerical and storeroom unit requested herein. The result reached by my colleagues in requiring representation of these employees by Local 4 rather than by the petitioning International is contrary to or- derly procedure and established precedent and amounts, in actuality, to an attempt by this agency to force the breach of a collective-bargaining agreement. As neither reasons nor evidence which could justify such an action appear in the ma- jority decision or in the record herein, I must dissent from the position taken by my colleagues. The Employer and Local 4 of the petitioning International Union have a collective-bargaining agreement now in force which covers a unit of production and maintenance personnel but which specifically excludes laboratory, plant clerical, and storeroom employees. The International, in the instant case, seeks certification as the representative of these particular excluded groups. The majority decision grants an election among laboratory employees to determine whether or not they desire to have the International as their representative. It de- nies , however, the same opportunity to the plant clerical and storeroom employees holding that these employees must be represented, if at all, by Local 4 as a part of its production and maintenance unit. Yet Local 4 is not a party to this pro- ceeding, has signed a contract excluding these employees from the production and maintenance bargaining unit, and has ex- pressed no interest whatsoever in the representation of the plant clerical and storeroom group. Unless my colleagues wish, without comment or specific statement, to overrule a considerable body of precedent, there is no question but that the plant clerical and storeroom em- ployees here comprise a residual group of unrepresented em- ployees such as this Board has long held may constitute an elf Local 4, United Cement, Lime and Gypsum Workers International Union, AFL, does not desire to represent the plant clerical employees as an addition to the production and maintenance unit it now represents , the petition as to these employees will be dismissed PENN-DIXIE CEMENT CORPORATION 255 appropriate unit," These employees are thus entirely eligible to select a representative of their own choosing and a sub- stantial number of them have supported the application of the petitioning International for an election to determine whether or not that union shall be their certified bargaining agent. My colleagues further agree that the International union is, in every sense, clearly eligible to become that representative. The majority decision, however, in complete disregard of these facts and applicable Board precedent, takes the un- supported and, to me, unauthorized action of denying the store- room and plant clerical employees the right to select their own union. Instead, the majority decision directs that these employees be represented by Local 4 or by no union. Yet Lo- cal 4 has made no claim to represent these employees and did not participate or become a party of record in this pro- ceeding. To the contrary, Local 4 expressly excluded this group from the contractual bargaining unit. Under these cir- cumstances I can perceive no valid reason for denying the pe- titioning International a place on the ballot and instead forcing Local 4 to appear in an election determining the representa- tion of employees who do not seek Local 4 as their bargaining agent and whom Local 4 does not wish to represent. It is fur- ther apparent that even if Local 4 does appear on such a bal- lot and wins the election the result will be to create an ex- panded unit in direct conflict with the terms of the collective- bargaining agreement now in force at this plant. The sole grounds offered by my colleagues in support of their decision are that the record does not indicate that any "conflict of interests or disagreement" exists between the International and its Local 4 and that "our administrative ex- perience has shown that under such circumstances it is the Local, and not the International, that in actuality bargains for the plant clerical employees." The first of these statements is clearly immaterial while the second, if true generally, is completely unsupported as applied to the instant case. If a petitioner, in order to qualify as representative of employees such as these, must demonstrate that it possesses a conflict of interests with other possible representatives, it is a prere- quisite new to this agency and certainly not litigated in this proceeding. As for the further conclusion of my colleagues that Local 4 "in actuality" would bargain for the plant cleri- cals, it is sufficient to state that the record is barren of any evidence or facts substantiating this more conjecture. Absent such proof, if these employees wish the International to be their certified representative, I believe that this agency is arbitrary indeed to forbid such a choice because of what we divine to be the hidden motives of that union. Certainly neither the Morgenthaler Linotype or Truson Steel cases, cited in the 10 See, e, g. American Security and Trust Co., 78 NLRB 927; Jordan Marsh Company, 85 NLRB 1503; Guntert and Zimmerman Construction Division, Inc., 81 NLRB 87; Puerto Rico Glass Corporation, 101 NLRB 1347. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority opinion , are precedent for any such action as taken herein. Finally, Section 9 (c) of the Act , which concerns the Board's authority to hold representation elections , directs that this agency should provide such referenda where "an employee or group of employees or any individual or labor organization acting in their behalf" files a petition to the effect that they desire collective bargaining and that their employer "declines to recognize their representative." It is obvious that the re- stricted election directed among plant clericals and storeroom employees by the majority decision does not meet these re- quirements for the employees do not seek Local 4 as their representative and Local 4 makes no claim to that status. Accordingly , as the majority decision does not resolve the question concerning representation which has arisen herein but instead achieves an artificial and ill-advised result ignoring the facts , the law, the existing collective -bargaining contract, and the wishes of both parties and the employees , I cannot join in that decision . Rather, I would direct an election among the plant clerical and storeroom employees to determine whether or not they desire the petitioning International Union as their representative for collective bargaining. RUGCROFTERS OF PUERTO RICO , INC. and JUAN JOSE ARCELAY. Case No. 24-CA-400 . December 2, 1953 DECISION AND ORDER On September 25, 1953, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above -entitled proceed- ing, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions , and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Rug- crofters of Puerto Rico, Inc. , Sabana Abajo , Carolina, Puerto Rico , its officers , agents, successors , and assigns shall: 107 NLRB No. 72.